Lord Jenkin of Roding: My Lords, the noble Lord, Lord Truscott, has honoured his word and has written to me about the EU Emissions Trading Scheme following our debate on 8 February, and I have passed his letters on to a number of people who have expressed great interest in what he said. However, there is one matter that the noble Lord will recognise may cause some difficulty. I asked when clean coal technology would come within the EU Emissions Trading Scheme, and the noble Lord, Lord Truscott, said that it would not until 2013. Why can we not bring clean coal into that scheme as soon as possible?

Baroness Anelay of St Johns: The objective of the amendment is to ask the Minister to clarify some of the confusion caused by the consultation paper that preceded the drafting of the Bill and which may have undermined the usefulness of some of the responses.
	What kind of people have the Government decided the courts and police are no longer capable of tackling via the normal criminal justice system? I am aware that the Minister made it possible last night for noble Lords to hear a briefing by those in charge of the Serious Organised Crime Agency. I sent a representative to the meeting and I have seen a note of it. I am sure that the meeting was very helpful to those who were able to attend.
	The director and the chairman of the Serious Organised Crime Agency gave their own views about what kind of people they might be able to target. I also understand that they gave the examples on the basis that they would be subject to Chatham House rules, because specifics were being given. Certainly against the background of some of the arguments with the BBC and the Guardian this week,I wholeheartedly support the proposal that we should not reveal any of those details on the Floor of the House. I would never myself wish to undermine a police operation and a successful criminal prosecution.
	We need to know what kind of people the Government are giving up on in terms of criminal prosecutions: who, they feel, are suitable only for subjection to a serious crime prevention order. We will have debates later on what kinds of crimes are being considered; I am asking now, what kind of—we would say—criminals?
	The consultation paper New Powers Against Organised and Financial Crime was published in July 2006. It was directed that responses be sent to the "organised crime consultation team". The executive summary refers to plans to introduce a "serious crime prevention order", but Chapter 3, which deals with consultation on this proposal, is suddenly headlined "Organised crime prevention orders". We then switch back again, a page or so later, to the use of the term "serious crime prevention order". But in the questions put to respondents—for example, questions 7 and 8—the Government return to the term "organised crime prevention orders". What kind of criminals and crime are the Government really asking respondents to consider appropriate for this kind of order? It certainly did not appear crystal clear from the consultation paper. What are we expecting to deal with as we consider this Bill: serious crime, organised crime, or serious and organised crime?
	If it is intended that the order should affect only those involved in organised crime, why not say so consistently? What was the rationale behind the confusing use of different terminology at different times? It is important to know that from the start, because the changes that the Government propose in Part 1 are significant.
	I note, too, that the proposals relate to England, Wales and Northern Ireland. My noble friends Lady Carnegy of Lour and the Duke of Montrose may wish to ask questions about the potential impact on Scotland. As ever, I defer to them on matters relating to Scotland.
	The report of the Select Committee on the Constitution set out clearly the challenge that lies ahead as we scrutinise Part 1. It said:
	"A broad question for the House is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders. Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate"—
	a matter on which it expressed doubt—serious crime prevention orders, in their view, represented an incursion into the liberty of the subject and constituted a form of punishment that cannot be justified in the absence of a criminal conviction. That challenge has guided how we have approached our consideration of Part 1.
	I made clear at Second Reading that it is vital that the Government—any Government—should protect the British public from those who do their utmost to encourage serious organised crime and profit from it, while taking great care to stay at arm's length from those crimes. They are a danger to all of us but their hands never appear dirty in public. We know it is difficult to take measures to protect the public from such people, but we know it is vital that we should. However, the methods we adopt must be proportionate and effective, without undermining our system of law and justice.
	The Select Committee's report makes it clear that we should consider whether the Government's proposals in Part 1 would undermine that system of law and justice. The best weapon against serious criminals is to track them down, charge them and prosecute them. My first reaction when I read Part 1 was that it looked like bad policy and bad law. We are sceptical about the Government's proposals but we are concerned that we should give them a full, fair consideration. We have therefore tabled a significant number of amendments to Part 1 to give the House the opportunity to examine both the principle and the practice likely to underpin the imposition of serious crime prevention orders by our courts. Our objective is to give noble Lords the fullest opportunity at Committee stage to scrutinise whether these new civil injunctive orders are a step too far or whether there are grounds that can be put forward on which they should be tolerated.
	The answers we will receive from the Minister during our deliberations on Part 1 will inform our approach on Report. I beg to move.

Lord Dholakia: I support particular amendment in the names of the noble Baroness, Lady Anelay, and the noble Lord, Lord Henley. Our reasons are very straightforward. We are challenging the name "serious crime prevention order". The recommended name "organised crime prevention order" is much more appropriate. If this part of the Bill arises out of the need to tackle serious organised crime, it should be described as such.
	I thank the Minister for the briefing session yesterday. It was pretty clear that we were talking about serious organised crime, particularly relating to class A drugs, human trafficking and fraud. Serious crime encompasses a much wider bracket of offences than organised crime. Although serious crimes can be linked to organised crime, it is important that such orders are not extended to cover individual offences where there is no evidence that they are connected to organised crime.
	Public perception is somewhat different. This amendment should be supported so that the clarification is there for all to see.

Baroness Scotland of Asthal: Perhaps I may reinforce what the noble Lord has said—he is absolutely right. The Serious Organised Crime Agency has drawn unto itself some real expertise. This involves high quality work that needs the most careful consideration, and there is a total commitment from Sir Stephen Lander to recruit people who will be able to intercept serious crime, which flows in the way described by the noble Lord. I assure him that an appreciation and understanding of the need for that sort of acumen is absolutely understood by SOCA and the Government. The noble Lord is right to say that some of these criminals are extremely skilled and they have the advantage of a great deal of illicit money with which to acquire even greater skill.

Lord Dholakia: In moving this amendment, I shall speak also to Amendments Nos. 4, 87 and 88. The purpose is to tease out what the Government actually have in mind in relation to reasonable doubt. As a result of this amendment, the rules of evidence that apply in criminal proceedings would apply in proceedings relating to serious crime prevention orders.
	The amendments would also clarify the Government's intention that a court should be satisfied beyond reasonable doubt that a person has been involved in serious crime before making an order. The British legal system and post-war human rights framework apply more rigorous fair trial standards to criminal trials than to civil proceedings. This is because a civilised democratic state can only justify using this great force punish an individual if it is established beyond reasonable doubt that the individual has committed an offence and the individual has been given a fair opportunity to defend himself.
	At Second Reading, the Minister, the noble Baroness, Lady Scotland, was eager to counter arguments that serious crime prevention orders were a means of evading the higher fair trial guarantees that apply in criminal proceedings. She said that serious crime prevention orders are,
	"civil orders, so this involvement [in serious crime] will have to be proved to a civil standard. But I know that many of your Lordships will be only too aware—so I hope that noble Lords will forgive me if I emphasise it—that where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard. Recent case law has stated ... that in proceedings like these the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of 'beyond reasonable doubt'".—[Official Report, 7/2/07; col. 729.]
	We acknowledged that that could be the case. However, it is not by any means certain that the courts would apply this higher standard of proof in serious crime prevention orders proceedings. These amendments would clarify the point and provide the certainty that is rightly sought by many Members of the Committee.
	The fair trial guarantees in criminal proceedings also go further than a high burden of proof—for example, the general rule against reliance on hearsay evidence. The general requirement that a person is convicted only on the basis of statements made in oral evidence in proceedings was designed to ensure that guilt or innocence is not determined on the basis of unreliable rumour and gossip and to ensure that the suspect has a chance to challenge the evidence against him. It continues to perform a vital function, helping us to ensure that the innocent are not swept up with the guilty and maintaining public faith that our justice system does indeed deliver justice. This is clearly as relevant today as it was in the past. The amendment would ensure that these criminal rules of evidence apply to serious crime prevention order proceedings. I beg to move.

Viscount Bledisloe: I have considerable sympathy with the speeches made in support of the amendment, but I am rather puzzled as to where, if the amendments are passed, that leaves this whole part of the Bill. As I understand it, the purpose of the Bill—whether it is acceptable or not is another question—is to enable someone to be dealt with where it could not be proved in the criminal court that he had committed an offence, so that the order could be made. If the amendment, together with Amendments Nos. 87 and 88, is passed, first, the order can be made only if it is proved beyond reasonable doubt—that is, to a criminal standard—that he has committed an offence and, secondly, you can use only such evidence as would be admissible in a criminal trial. Surely that means that you have enough to get the person convicted, unless you think, "If I go in front of a judge without a jury I will get a conviction, or an order, but if I go in front of a jury, I will not get a conviction". Well then, let us abolish jury trials for such offences. I gather that we are about to attempt to abolish jury trials for some other offences.
	It seems to me that there will be nothing left of the whole of Part 1 if the amendments are passed, with the possible exception that you may be able to get an order if you can only prove that someone must have been involved in a crime, rather than, as you must do in a criminal court, specifying the crime of which you are charging him and of which he is to be convicted. It is surely not satisfactory to say, "It is obvious that you have committed a very serious crime. How on Earth else have you got this vast sum of money and are living where you do? I cannot tell what it is, but you must be guilty of a crime, so I shall make one of these orders".
	I ask the proponents of the amendments to explain what is left of Part 1 if they are passed. They may say, "No, nothing is left of Part 1, and a jolly good thing, too". I may agree with them, but we should be clear whether we are being asked to strike Part 1 from the Bill or whether the amendments are something much less.

Lord Lyell of Markyate: I shall try not to repeat what has been said, because I very much agree with what the noble and learned Lord, Lord Lloyd, and others have been saying. I want the noble Baroness to tease out and explain to us how the new agency intends to make progress in a way that it could not do through the ordinary criminal courts. I have a great deal of sympathy with the notion that the ordinary criminal standard of proof and the ordinary criminal procedures should have to be applied.
	If we move away from that, we shall find two particular problems. First, defendants and prosecutors will not really know where they are. Secondly, there is a serious danger that the procedures will fall foul of the European convention and we shall find cases being taken to Strasbourg. We know—I will not say that this is unfortunate, because I think that it is right—that Strasbourg is very clear that, when penalties are imposed that are in effect criminal, they are treated as criminal and criminal standards are required throughout the case.
	Given the Government's explanation of the matter so far and the likelihood, following McCann and other authorities, that the courts are likely effectively to impose criminal standards in a large part of this, there might be a very great deal to be said in favour of, as the amendment suggests, writing those criminal standards into the Bill. My question, which is, in a way, the antithesis of the question of the noble Viscount, Lord Bledisloe, is: how does the noble Baroness see this working? Can she flesh out briefly with a few practical examples how the procedures will assist?

Lord Henley: We have some sympathy for the amendments tabled by the noble Lord, Lord Dholakia, but at the same time we also have sympathy for the arguments put forward by the noble Viscount, Lord Bledisloe. If that sounds confusing, I have to say that the Government's own position is somewhat muddled. The noble Baroness will recall that the noble Lord, Lord Thomas, intervened in her speech at Second Reading to ask whether an undertaking could be given to add the words "beyond reasonable doubt" to the Bill. That followed her statement that in effect it was not necessary because,
	"where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard. Recent case law has stated clearly that in proceedings like these the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of 'beyond reasonable doubt'".—[Official Report, 7/2/07; col. 729.]
	If that is the case, I fail to see why the noble Baroness resists actually having the words "beyond reasonable doubt" on the statute book.
	When considering the first amendment, my noble friend made it clear that we are sceptical about the Government's proposals and that at this stage all our amendments are designed to probe exactly what they intend and whether what they are doing is really a step too far in terms of how they intend to deal with serious crime. For the same reason, we have some sympathy for this amendment in order to tease out exactly what the Government intend—whether they really believe that "beyond reasonable doubt" can be inferred, as the noble Baroness put it, as a result of recent case law, or whether it might be better to add the words to the Bill.

Baroness Scotland of Asthal: It is clear from the number of noble Lords and noble and learned Lords who have spoken that it might be advantageous if I contextualise where we are and how these orders will work. The orders are preventive measures, and perhaps I may explain why. Regrettably, and particularly with serious crime, serious criminals are generally those who will commit crimes again and again. I will check this, but the figures show that around 85 per cent of very serious criminals are recidivists. When they come out of prison, they go back to committing more crimes, in a way that is complex and difficult. The task is not only simply to catch and convict them of a particular crime, but also to try to prevent them from committing further crimes, to interdict that criminal behaviour and to look at the methodology that they adopt and try to target a preventive order that makes it more difficult for them to perpetrate those or similar crimes again.

Baroness Scotland of Asthal: In one sense, we are dealing with both groups. We are dealing with groups of criminals who have previously been convicted of offences and whom we wish to prevent adopting a similar modus operandi and committing future crimes. We are also dealing with individuals—quite often third-party—used by those criminals to undertake legitimate activity for an iniquitous purpose. For example, there may be an arrangement whereby a criminal buys vehicles with false bottoms in which to transport people and/or drugs. The third party involved never sees the criminal or has an explicit conversation with that individual, but it is clear that the use to which the vehicles are being put, such as people-trafficking or drugs, is iniquitous. At present, there is a difficulty because such third parties will seek to rely on the fact that the activity is legal, commercial and cannot be interfered with. The orders would enable us to prevent that continuance in order to prevent serious crime being facilitated. That is why it is important.
	I see the noble Lord, Lord Goodhart, getting to his feet but before he does I should like to come to the point made by the noble Lord, Lord Dholakia. I have tried for a number of minutes to get to the noble Lord's question and to that of the noble and learned Lord, Lord Lloyd. If the Committee will indulge me, it might be easier if I deal with those before the noble Lord, Lord Goodhart, gets to his feet to interrogate on a further point.
	The first limb of the test for obtaining an order is whether the person has been involved in serious crime. The burden of proof is on the relevant applicant authority. The standard of proof will be the civil standard but, given the seriousness of the conduct alleged, following McCann, the standard the court will expect to be reached is likely to be close to "beyond reasonable doubt".
	The second limb of the test for obtaining an order—this is a two-limbed clause—is whether the order will protect the public by preventing, restricting or disrupting the person's involvement in serious crime. It is not a question of fact but one of judgment for the court. As a consequence, there is no burden of proof or any corresponding standard of proof. It is for the potential subject of the order—the respondent—to prove. The burden is on the respondent to prove that his actions were reasonable and should not form part of the court's decision on whether his actions facilitated or were likely to facilitate a serious offence, and the standard of proof will be the civil one. As the burden is on the respondent, we would expect the court to apply the standard of "on the balance of probabilities".
	There are parallels here with a criminal prosecution. In a criminal prosecution the burden of proving the offence is on the prosecution and the standard is "beyond reasonable doubt". If the defendant raises a defence, it will usually be for him to prove the defence but the standard of proof would be lower than for the prosecution; namely, "on the balance of probabilities". However, although in the context of burden and standard of proof there are parallels with a criminal prosecution, there are still important differences that mean that there are advantages to obtaining a civil order over a criminal prosecution. The two limbs would act together. We therefore say that this is a civil order; it is a preventative order. You still need McCann and you still need to understand how the two fit together—but within the civil not the criminal framework.

Baroness Scotland of Asthal: I understand the concern raised by the noble Lord, Lord Goodhart; this causes us to look at the matter quite keenly. We think that the way in which we have phrased the provision meets those difficulties. The noble Lord will know that there are situations where the criminal standard, as he rightly says, will have been reached because the individual has been convicted, and we can deal with that. I am grateful to him for accepting the propriety of that position.
	Anti-social behaviour orders were mentioned by many noble Lords, including the noble Lord, Lord Thomas of Gresford; but the way in which the breach of the football banning orders was dealt with is an interesting example of the effectiveness of taking preventative action. We were able to identify those who were likely to be engaged in activity, address the nature of their activity and stop them from carrying it out. There has been a dramatic reduction in offences as a result. Arrests for football-related offences were down by 7 per cent and there was 100 per cent compliance with the conditions of the football banning orders during the recent World Cup. We have all done better for it.
	These orders will take two forms. Because of the limbs to which I referred, the first being the need to establish whether a serious crime has been committed and the second being on a matter of judgment, the civil standard has to apply. It is a civil preventive order. The civil courts are very used to balancing those two. The Serious Organised Crime Agency has made it absolutely clear that it will want to apply for those orders for those who have been engaged in serious criminal activity. It was suggested that there may have been 25 or 30 such orders. The agency has a spectrum of serious organised crime with which to deal, which means that it has to concentrate its efforts on the most serious criminals to try to disrupt the activity in a way that will reduce crime in our country. It has an enormous job on its hands and it believes that the orders will greatly assist the agency.
	I hear what the noble Lord, Lord Thomas of Gresford, says, that it would be good to get rid of the whole of Part 1. That is not the view of those who are burdened, on our behalf, with trying to interdict the serious criminal activity being carried on in our country.

Lord Thomas of Gresford: I respectfully point out that subsection (3) says that the order under the
	"section may contain ... such prohibitions, restrictions or requirements ... and such other terms ... as the court considers appropriate".
	It does not prevent a house-arrest order being made. For example, in the case of a sex-offender, the appropriate order might—rightly or wrongly—be to restrict them to their homes, if this legislation goes through. Another way is restricting them from dealing with their assets—their bank accounts and so on. A third way is to prevent them from travelling, whether to the next town or outside this country. Another way would be to impose curfews. The restrictions that can be imposed are absolutely open ended. The noble Baroness has talked about tailoring; the judge will tailor the order to the particular problem that the defendant poses. This is incredible. The more we look at it, particularly with reverse burdens of proof, the more incredible it appears.

Lord Lyell of Markyate: The noble Baroness should understand that we are teasing these things out to try and produce some sensible legislation, if it can be done in accordance with proper principle. She was kind enough to give the example of a Mr Big who in some way was going to finance lorries with false-bottomed compartments to be used for drug smuggling or people smuggling or whatever. Could she go on and indicate the kind of order that she would anticipate that a court might make in that case or of some other good example?

Baroness Scotland of Asthal: I have to be really careful because I have about 12 excellent examples in my mind, but I regret to tell your Lordships that I understand that all of them are active cases. They would clearly indicate why we need this. I am grappling quickly to see whether I can come up with a different scenario, which would be similar to but not identical with those that are currently under review. Let me try.
	A scam could be run in relation to, for example, a school. People are being trafficked to this country, provision is being made for them to attend a school and they get visas on that basis, but no school exists. However, there are premises which have been secured by the Mr Big through which these people can obtain a visa. Third parties may be involved in providing PO box numbers and matters of that sort. You may wish to restrict the individual from obtaining a PO box number to facilitate that sort of fraud. You are looking at how the fraud or the criminal activity is being perpetrated and how you best disable that person from carrying out that fraud. You may therefore require a third party to notify the authorities if that individual were to obtain a PO box. That would not be a general clause but it may be a clause that the court would deem reasonable to apply in the circumstances.
	I will now deal with the provision of noble Lord, Lord Goodhart. I was trying to say strongly that the noble Lord, Lord Thomas of Gresford, in his usual colourful way was almost saying that these orders will be made to keep people under house arrest unreasonably. I would say that each condition has to be reasonable and proportionate.
	I come back to my noble and learned friend Lord Morris of Aberavon. If a condition was unreasonable or oppressive, it would not be consistent with the Human Rights Act. I would be greatly surprised if the court entrusted with this role would be minded to make such an order. The court knows all too well the balance that it would have to strike on reasonableness. It is therefore incredibly important that subsection (1)(b) says that the court,
	"has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement".
	The person who asserted that there were such reasonable grounds would have to prove it on the balance of probabilities. As I said, it would not be a discernible and identifiable fact; it would be a matter of judgment to which the court would have to come after considering all the facts of the case. Having looked at the information provided, the court would have to make that assessment.
	Ultimately, as that is quite a serious assertion, if the court felt that the evidence was of insufficient weight to satisfy the court that it should make an order, an order would not be made. We were therefore very careful when crafting the provision that the lower court would not be dealing with it, as we know how complex and difficult these issues are; it really has to be the High Court, which we believe can be entrusted appropriately and consistently to carry out that balancing exercise. Importantly, to the fore of every piece of legislation is the statement on compatibility with convention rights. The court will have to craft these orders so that they are compatible with the convention rights. The orders will have to be proportionate and just and the court will have to be satisfied that it would be proper to make them. These are not executive orders made by the serious organised crime office or the Government but orders sought from the court and given by the court.

Lord James of Blackheath: Is the way in which the Bill will work as explained this afternoon compatible with the protection of offenders legislation? Surely the fact that an order has been given will imply previous offences. It will therefore have just as much effect as announcing that the individual, who may be seeking high office in a company, has a criminal record, in which case he would not be allowed to serve. But we are not allowed to do that. Not even the Stock Exchange Council is allowed to indicate to shareholders the criminal record of someone seeking appointment as chairman. However, someone in that position could be subject to one of these orders. But by that time it would be too late to take redress because the offence would already have occurred. There is a real problem here. There was a case 20 years ago in which it emerged that a man had run bordellos when he was younger. He later became a more ambitious businessman and went on to become chairman of a public company from which he took £385 million. It would have been much more useful to be allowed to name his previous offences than to bring an order against him.

Baroness Scotland of Asthal: I am not sure that I entirely understand the concern of the noble Lord, Lord James; but if he is saying that it would have been better to prevent the individual's action, then I certainly agree. The legislation provides that if an individual had been involved in serious crime, it might be possible to apply to the court—particularly if that serious crime had been perpetrated through the iniquitous use and creation of a number of businesses—for a prevention order concerning that activity.
	I may be able to use a somewhat neutered example, if it assists your Lordships. I am trying to be very careful here. I was asked about the haulage company, and we discussed secret compartments. If we could impose a restriction on that haulage company, so that they would have to disclose their customers to the Serious Organised Crime Agency, or further information to whom they supplied their vehicles, that could be an order. From that information, the Serious Organised Crime Agency would then be able to follow those individuals, to see whether it would be lawful. These prevention orders can be used in a way that would be helpful to interdict serious crime in the future.

Baroness Scotland of Asthal: I agree with noble Viscount, Lord Bledisloe, that if these amendments were passed, you would not be able to get at Mr Big. But there are a number of Mr Bigs who use a whole spectrum of smaller agencies in order to perpetrate their large, iniquitous crime. What we must do is twofold. First, we must try to target Mr Big and strip out those steps before one can get to him—those people in the middle. We also have to disable him from taking adventitious advantage of lawful activity which he then uses for his own iniquitous purpose. So you could have a whole series of people engaged in what on the surface is, individually, lawful activity, but is then used by the serious criminal to his advantage to perpetrate the crime. I gave the example of using PO box numbers and properties with others in a way that makes it very difficult.

Baroness Scotland of Asthal: I must be doing very poorly indeed today. I apologise if I seem to have lacked the clarity that would enable noble Lords to better appreciate what I am trying to convey.
	The application to be made under Clause 1 comes in two parts. Those two parts may well, in discharging the civil standard, have different approaches adopted in relation to them. In relation to the first limb, I refer to the seriousness of having to satisfy the court that the,
	"person has been involved in serious crime".
	Following McCann, it is reasonable to assume that the court is likely to adopt a standard similar to, if not identical, with that of beyond reasonable doubt. In relation to the second limb—the court must be satisfied about both limbs—it is likely that the court would have to be satisfied on the balance of probabilities that it had,
	"reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales".
	I do not say that this preventive order relates to a criminal offence or a criminal act in the way that the noble and learned Lord is concerned about. We say that it is a civil order. Within the civil order there is a sliding scale. The court will look at each element and determine where on that sliding scale the burden of proof should lie. Overall, we say that the burden, on the balance of probabilities, because it is a civil preventive order, is the right standard, confident that McCann will certainly bind the court when it looks at these issues. That is why we do not think that it is important or necessary to include "beyond reasonable doubt" in the Bill.

Lord Lucas: The noble Baroness gave the example of vehicles with false bottoms. The proposal to report orders to SOCA may not sound too serious but would result in the destruction of a person's business. Given the choice of buying from someone and having your order reported to the police, or buying from someone else and having no such reporting, all their customers will naturally choose to move to an alternative supplier so that they do not have SOCA crawling all over them to see whether they are involved in people trafficking. Given a reasonable level of commercial sense in reporting, which seems to me commonplace, I reckon that it would take about three months for the company to die under those circumstances. The same would be true of many of the examples discussed last night.
	As I understand it, facilitating can be entirely innocent. If you are supplying a substance that is used if not widely at least alternatively and which happens to have been used in a particular case for cutting drugs, and you are subject to the order whereby you have to tell the police every time you supply a customer with these materials, your legitimate business will disappear and you will be left entirely reliant on what you may not have known or understood at the time to be a criminal transaction. Effectively, these orders will destroy ordinary, legitimate businesses although they seem in themselves entirely reasonable.
	I say to the noble Lord, Lord Thomas of Gresford, that while courts may initially be prepared to act like a couple of kings chasing each other round a chessboard, always trying to occupy the last square that the criminal was involved in, very soon they will find that it is reasonable to impose orders with some teeth that have some hope of anticipating the criminal's next move. They are very likely to take the form of restricting someone's movements or the time that they spend out of their house, which is a very easy, convenient and monitorable system. There is absolutely nothing in the Bill to prevent orders evolving in that direction.

Baroness Scotland of Asthal: I can see the fear, but I am advised that it works thus; so far, there have only been difficulties where the business has failed to and/or refused to comply reasonably. For instance, there are those who say, "I am not my brother's keeper: if I provide this service to an individual and they use it for nefarious practices—whether that is drug-smuggling, people-trafficking or anything else unbeknown to me—that is not my business". It might also be claimed, "If I receive a great deal of money for converting a car, which is used for nefarious practices, that is not my business, because I am entitled to get as much money as I can for services that I supply".
	Where there is a refusal to take on board the consequence of that activity, it would be reasonable to apply for an order to ensure that that individual at least apprises the authorities of who the customers are. In some cases with which we are dealing, the business will say, "I don't know the name of the person or receive any money in written form. I receive it in cash, and there is no way at all that I can help". In those circumstances, the Serious Organised Crime Agency certainly thinks that impropriety needs to be addressed, if we are to curtail criminal activity.
	It has been claimed that the conditions are oppressive. Noble Lords will know—because we have been debating them a great deal regarding actions taken under SIAC—that if conditions are applied that amount to house arrest, a derogation from the Human Rights Act would be needed. We have no derogating orders in this country; therefore any condition attached by the court would have to be HRA-compliant; otherwise, I am sure, it would be struck down.
	I can certainly write to noble Lords to give further and other such cases that we are dealing with and that may assist. Indeed, Sir Stephen Lander was able to explore many of those with us last night, but, as I have explained, it would not be proper for me to further explore them in the open forum of your Lordships' House.

Lord Dholakia: The amendment has been grouped with Amendments Nos. 5 and 9 and would restrict the ability to make serious crime prevention orders in situations where the High Court was satisfied that it would not be possible to prosecute a person for a criminal offence. It would require criminal investigations to be continued following the making of an order, with a view to a criminal prosecution.
	We suspect that serious crime prevention orders would become an unacceptable legal shortcut and make it possible to punish individuals without the administrative inconvenience of fair trials and due criminal process. The government response is that that is not the aim, and they argue that these orders are needed to deal with cases where a criminal prosecution would not be possible, and that the orders are therefore the only options.
	In the debate of 7 February the Minister said,
	"I know that in the press coverage of the publication of the Bill there has been much mistaken comment about these orders being a way for law enforcement agencies to get around troublesome prosecutions. I assure the House that that is not the intention".—[Official Report, 7/02/07; col. 729.]
	That assurance is not a sufficient guarantee. Nothing in the Bill would prevent a serious crime prevention order being used as an alternative in cases where a criminal prosecution would be entirely possible but where it was thought either to be too troublesome due to the fair-trial hurdles that would need to be crossed or not to provide a sufficiently broad range of remedies.
	The predecessors of these orders, ASBOs and control orders, which the noble and learned Lord, Lord Lloyd, mentioned, demonstrate the need for express safeguards to be included in the Bill. It has been common for ASBOs to be used as an easier alternative to a criminal prosecution, because it is more straightforward to collect and rely on hearsay evidence. Parliament was similarly concerned that control orders would be used as an easy alternative to criminal prosecutions for those involved in terrorism, and insisted that a provision be included in the Prevention of Terrorism Act 2005 that required the possibility of a criminal prosecution to be considered before a control order was made and for a criminal investigation to be continued following the making of the order.
	Notwithstanding that provision, it appears that incomplete consideration has been given to the possibility of prosecutions prior to the making of control orders. That was one of the reasons why the High Court decided on 16 February that the Home Secretary had exceeded his powers under the PTA 2005 and, therefore, quashed the control order. There is every reason to fear that the ability to deal with a serious crime by using an order will remove the incentive to pursue a criminal prosecution.
	Our amendment would ensure that that was not the effect of serious crime prevention orders and would thereby safeguard the Government's intention, expressed by the noble Baroness, Lady Scotland. The amendment would require the High Court to be satisfied that a person could not be prosecuted before making a serious crime prevention order and that all appropriate lines of criminal investigation were pursued diligently following the making of an order. I beg to move.

Baroness Scotland of Asthal: There are some internal inconsistencies in these amendments, but I took it that this amendment and the earlier one were probing, so maybe the inconsistencies can be viewed in that context. The amendments reflect a fundamental misunderstanding of the purposes behind the Bill and how it will work in practice. Nothing proposed in legislation alters the role of the applicant authorities in deciding whether prosecution should be sought against an individual. The Government are committed to ensuring that those who commit serious crimes are caught and punished, and it is very clear from discussing these matters with the Serious Organised Crime Agency that it shares that view. Part of its business is to take out and restrict the activity of serious criminals and make it more difficult for them to perpetrate their crimes.
	Nothing in these orders is to do with punishment. The purpose, as I have tried to make clear in earlier debates, is preventative, and Amendments Nos. 3 and 5 would mean that, before being able to consider an order to prevent future harm to the public, the applicant authorities would have to seek prosecutions against the persons concerned for every crime they had ever committed. Your Lordships will know that in making decisions the prosecution may often decide that a particular crime could be prosecuted but in the public interest it would not be appropriate under the circumstances.
	This judgment process remains unchanged by this Bill. However, irrespective of whether a prosecution has been or will be sought, the Bill leaves it open to the applicant authority to seek to demonstrate to the High Court that a person has been involved in serious crime and that the proposed terms of an order will prevent, restrict or disrupt involvement in serious crime. One knows that on occasion some very complex cases take a very long time to come to court, and it may be necessary and appropriate for the agency to apply to the court in the interim for orders to restrict the activity that the criminal could participate in while that time frame prevails. The decision whether to prosecute an individual and the decision whether to apply for an order to prevent harm to the public are two completely separate issues based on different criteria. For that reason it would be inappropriate to restrict the ability of the High Court to impose a reasonable and proportionate means of preventing harm simply because a prosecution for an offence has not been sought for a legitimate reason.
	I have some sympathy with the intention behind Amendment No. 9. It sets out expressly that the making of an order is without prejudice to any criminal investigation and that, once an order has been made, the investigation of the subject of an order must continue to be pursued. Appropriate prosecution of the people who have committed serious crimes will always be desirable, and these orders do not rule out that possibility.
	As I said, the orders will be preventive and will be used as part of the criminal lifetime management of those engaged in serious crime. They may prevent harm while investigations are ongoing or they may help to stop a person re-engaging in serious crime after they have been convicted and have served a sentence. At Second Reading, the noble Lord, Lord Dear, gave us a very graphic example of some of those cases and of how long they can take to come to fruition and go before the courts.
	The making of an order will not rule out the possibility of a criminal investigation continuing but we do not believe that there is any need to say so expressly, as in paragraph (a) of the amendment. As for paragraph (b), we do not think that it is appropriate to require law enforcement to continue to pursue an investigation. We believe that it is more appropriate to give law enforcement officials discretion to manage each case based on its facts. For those reasons, I hope that the noble Lord will see that there is great sense in approaching this matter in the way that I have just described.

Lord Dholakia: I thank the Minister for her explanation. I also thank the noble Viscount, Lord Bledisloe, for his observations. We have an opportunity to look again at what sort of revisions to the amendments might be necessary and at whether our concerns can be expressed differently. On that basis, I beg leave to withdraw the amendment.

Lord Mayhew of Twysden: Will the Minister in her reply undertake to deal with the provisions in Clause 5(7), which, on several readings, I find extremely confusing? Incidentally—and this is important in the light of our earlier discussions—that subsection includes provision conferring discretion on law enforcement officers to impose "prohibitions, restrictions or requirements". Law enforcement officers are defined to include, for example,
	"a member of the Serious Fraud Office".

Baroness Scotland of Asthal: I thank the noble Baroness for the way in which she spoke to her amendment. This goes back to some of the comments that I made on earlier amendments. We are trying to give the courts a degree of flexibility so that they can tailor an order to best fit the circumstances of the case under consideration. We have been conscious that technology moves quickly and we want the legislation to stand the test of time, so we think that judicial flexibility, which would be limited by virtue of the reasonableness of the provisions and compliance with the Human Rights Act, would be an important advantage.
	Clause 1(3) and the corresponding provision in Clause 19 allow the courts to impose positive as well as negative obligations on the subject of the order. Under an order, a person can be required to take action as well as not to take action, but always subject to the requirement that the terms must be preventive rather than punitive. We do not wish to see these provisions restricted in the way proposed because we do not want the courts to refuse to make an order simply because a particular term cannot be described as a prohibition, a restriction or a requirement. Rather, the courts should be able to impose those terms that they consider will prevent harm. They will have to justify and explain them, and make sure that they are human rights compatible, that they are not oppressive and that they are proportionate, but we believe that they should be entrusted with the opportunity.
	Having heard my response, I hope that the noble Baroness will be content that these provisions do not cause the worry about which she might be concerned.

Baroness Anelay of St Johns: I am grateful to my noble friend Lady Carnegy of Lour because she highlighted exactly my concern that it is a case of ensuring that there are parameters and that Parliament takes proper responsibility for setting the boundaries within which the judiciary then acts in specific cases. I am concerned that there is so much flexibility and lack of clarity that there could be problems. However, I agree entirely with what the Minister says. There are ways in which one can have safeguards in other parts of the Bill. Therefore, my paving amendment was purposely in Clause 1 because I accept the Minister's argument that Clause 1 of itself does impose on the courts parameters that set the scene before they get to Clause 5. I appreciate that I will always have to look at Clause 5 within the terms of what steps the court has had to go through before it reaches that.
	The noble Baroness and I are also at one in wanting to get at the pernicious people who may well be dealt with properly by some of the examples given in Clause 5. In particular, the noble Baroness mentioned the case of those who compile what are called "sucker lists". They carry out mail shots that offer prizes that may not exist or, if they do, are worthless and when people reply, not only do they find that they have to phone a premium-rate phone line, but also when they reply their details go on to a sucker list which is sold on, as a big-business effort, not only to people in this country who exploit them, but also all around the world. Cases have been well set out in newspapers, particularly in the Sunday newspapers in the money pages, of vulnerable and elderly people—"vulnerable" and "elderly" do not necessarily go together—whose lives have been ruined by these people. The noble Baroness is always very good at presenting to us the hard case which would make us bite our tongues and accept the argument of the Government; "Oh, well, we'll take what the Government propose because it could catch these serious criminals".
	I agree with the noble Baroness in everything, except that I need to look very carefully at the detail of Clause 5 and whether part of it towards the end may need to be amended to make it a little less flexible and to give it a little more clarity, without undermining its purpose. I shall consider that before Report stage. I beg leave to withdraw the amendment.

Baroness Anelay of St Johns: There can be no doubt at all that trafficking is a great social evil. I am grateful to the noble Lord, Lord Dholakia, for bringing this matter forward in a separate amendment which highlights its importance. Research reveals that between 700,000 and 2 million women and children are trafficked across international borders every year; 60 per cent of illegal immigrants resident in this country arrived here illegally and the majority in the back of a lorry. The noble Baroness has already referred to the difficulty about investigating that and the fact that some lorries are built specifically to accommodate such human cargo. There were an estimated 4,000 victims of trafficking for prostitution in the United Kingdom during 2003 and we know that there were 30 convictions for trafficking offences between 2004 and 2006. To date, as the noble Lord, Lord Dholakia, has said, as far as we are aware, no convictions have been achieved for trafficking for labour exploitation.
	This is a serious matter and one to which the House will return tomorrow during a debate on International Women's Day. My noble friend Lady Morris of Bolton will lead for us on that day. I know that she intends to look very carefully at these issues.
	We are very glad that, after some hesitation, the Government agreed to sign up to the convention on trafficking—the European Convention—and we hope that ratification will take place as soon as humanly possible. I would be grateful if the noble Baroness were able to give us some updated information on that. What progress has been made towards ratification? Perhaps she could comment on the results of her 2006 consultation paper, Tackling Human Trafficking, and the work undertaken by the Human Trafficking Centre, opened in Sheffield last October. I have a reason for asking those questions within the context of this very helpful amendment.
	This morning, I heard on the radio a news item which said that in this year of commemorating—I hate to think of it as celebrating—the abolition of slavery—slavery should never have happened in this country—the Metropolitan Police are launching a specialist trafficking team. I thought that sounded very helpful. I was already aware of Operation Maxim, which is the Metropolitan Police Service's partnership with the UK Immigration Service, the Identity and Passport Service and the Crown Prosecution Service, targeting organised immigration crime across London. They specifically target human trafficking. I knew about that, but this appeared to be a new initiative.
	Afterwards, I tried to find out the details and I went on the Metropolitan Police website and found nothing; I went on to the BBC information website—the BBC had put out the story—and found nothing; so I was becoming more and more confused. The story was repeated, so I knew the confusion was not in my head, thank goodness. I would be grateful to know whether the Minister has any information to assist the Committee on the remit of that trafficking team and how it might interact with SOCA. That will be important against the background of the briefing given to noble Lords last night. How would the roles of the team and SOCA differ or complement each other? Will the focus of the Metropolitan police team be on seeking criminal prosecutions or on identifying those cases where it might be more appropriate to seek a serious crime prevention order?
	I now do my elliptical loop and come back to my first comments about the scale of the trafficking problems in this country particularly and worldwide, and the comparative lack of success of prosecutions in the criminal courts and therefore the potential for the use of a serious crime prevention order in resolving some of the problems. The noble Baroness has argued that we should accept this new "tool", as she calls it, because it could solve problems that we do not seem able to solve at the moment. There may be an argument in the case of trafficking that an order could be a useful tool. I still need to be persuaded but it is one of the areas where there could be a valid argument.
	It is important that we know the status of the Government's work with regard to trafficking and the ratification of the convention, and also the status of the new trafficking team and how that is going to relate to SOCA. Is its main focus going to be on criminal prosecution or is it going to be moved away so that in the future it will focus on applying for a serious crime prevention order?

Lord Lyell of Markyate: I support the points made by my noble friend, Baroness Anelay, particularly in the context of trafficking and lorry drivers. The Minister will be aware of the case of Roth v the Home Office in which the 2001 Act crashed. The provisions for the confiscation of lorries, for demand for immediate payment of £2,000, and for a complete change in the rules of criminal procedure—denying the normal rules of procedure in circumstances which plainly involved a criminal penalty—meant that the Act was struck down. This was all in relation to the problem of illegal immigrants and the use and abuse of lorries coming into this country. The Government tried to control that and it was right to try, but it was not done in the right way. It was not proportionate or compliant with the Strasbourg court. We wish the Bill to succeed in the sense that we all wish to combat effectively this type of serious crime. We are testing it because we do not want to make those same serious mistakes again.
	Against this background, one of the problems in 2001-03 was that at Sangatte—the refugee camp near Calais and the entrance to the tunnel, and the place at which lorries are marshalled before driving onto cross-Channel ferries—there was absolutely no provision for the kind of electronic surveillance, mechanical or physical, which would have made a difference. I suspect that the Home Office is more up to speed on that now. I hope the noble Baroness will confirm that we have the kind of mechanical or technical facility which will show whether lorries driving onto vessels or into the Chunnel are carrying illegal immigrants. A great deal can be done technically; we know that because the United States has been down that route and is doing it successfully on the borders with Mexico. Before we decide to take procedural action, or action to change our criminal law and our normal rights and liberties, will the noble Baroness confirm that we are doing the right kind of things at Calais, Felixstowe, Newcastle and all the other places where we suspect, or know, that illegal immigrants are coming in?

Baroness Scotland of Asthal: With this area in particular, these orders should never be seen as a substitute for prosecution. Prosecution has to be explored with vigour. We are much better now at interdicting traffickers, but there is a view that we are still not as good as we would like to be and there is more to do. We are developing a UK action plan of human trafficking which will give us an end-to-end strategy to combat all forms of this evil crime. I was comforted that the noble Lord, Lord Dholakia, and the noble Baroness mentioned in particular those who are not trafficked for the sex trade but to be abused in employment. Illegal working operations can be as pernicious as any others. I was pleased to note that both noble Lords mentioned that, as did the noble Lord, Lord Hylton, who has raised the issue on a number of occasions.
	The plan will include chapters on prevention, enforcement and victim support and we are aiming to publish it in the next month or two. The UK Human Trafficking Centre was established, as I think the noble Lord, Lord Dholakia mentioned, in autumn last year, which supports the overarching aim of moving the United Kingdom to a leading position in relation to the prevention and investigation of trafficking of human beings. It will be the central point for the development of police expertise and operational co-ordination.
	This morning, the Metropolitan Police launched a dedicated team to deal with human trafficking, as the noble Baroness indicated. As well as targeting the criminal networks, the key objectives of the team are to improve knowledge and understanding of trafficking; to give advice and support to other police units involved in investigating trafficking; and to work to partners and communities in seeking to improve the Metropolitan Police's response to trafficking.
	A specific team has been set up because of a real recognition of not only the pernicious nature of the offence but the need to do something aggressive in response to it. The team will work diligently with the Serious Organised Crime Agency and the other agencies seeking to interdict this crime. In order to identify who is doing it, a number of agencies often work together. Sometimes they follow the money, sometimes the people and sometimes the activity. I can assure noble Lords that that will continue.
	As noble Lords have often heard me say, the United Kingdom is already compliant with the convention provisions on enforcement and the criminalisation of trafficking. But the main concern about the signature to the convention has been the potential impact on the provisions of a reflection and residence period for victims and the requirement to provide support, and specifically the risk that irregular migrants picked up during the course of illegal working operations will make false claims to victim status in order to frustrate removal.
	At the moment, the United Kingdom operates a case-by-case approach to victims of trafficking, who are removable from the United Kingdom. We will pursue reparation of an individual only if it is considered appropriate to do so. The victims of trafficking who are accepted by the Home Office-funded Poppy Project, about which we have spoken on a number of occasions, will have removal action held in abeyance for about four weeks while they give consideration to whether they wish to remain and assist authorities. If they do remain, they are not removed by the Poppy system.
	Much to the delight of many—I confess, including myself—we have been able to move forward on signing the convention. That is being dealt with as expeditiously as possible. As the noble Lord, Lord Hylton, will know, the modus operandi usually adopted by us, and indeed by other Governments before us, is to ready ourselves for signature so that ratification can take place as soon thereafter as reasonably practicable. I can certainly assure noble Lords that, my right honourable friend the Prime Minister having given the indication that we intend to sign and then ratify, everything is being done to expedite that and to make it possible to answer as soon as possible. I am aware that the noble Lord has, as he says, three Questions for Written Answer. As I understand it, the detailed work necessary to respond to him is being undertaken. We will give a full reply as soon as possible.
	I understand why we have taken a circuitous route in this debate by which we have had a mini-debate on trafficking. But I say to the noble Lord, Lord Dholakia, that these prevention orders are not a substitute for prosecution; they are simply another way of preventing the continuance of an activity, particularly if we have identified those who have trafficked people before. We wish to interdict and prevent future trafficking. I am thinking not only of the victims whom we are able to release on that one occasion. Regrettably, as I indicated, there are those who engage almost continually in this practice, and we have to try to stop them. For the victims, prevention can be so much better than cure.
	I listened with interest and gratitude to what the noble Baroness, Lady Anelay, said about her sympathy on these matters. I hope that I have said enough to assure the noble and learned Lord, Lord Lyell, that these matters are being vigorously looked at. The action plan, when it comes out, will cover prevention, what we are doing, what we are co-ordinating and how it will be delivered. We believe that there has been significant improvement in performance.

Lord Lyell of Markyate: Can the noble Baroness clarify whether, for example, the physical structures and so on that assist in monitoring lorries at Calais have improved? Six years ago, the Government, in about their fourth year of power, took draconian action to remove rights and liberties, which has been thoroughly unsuccessful. They knew very well then that they would spend very little money on the kinds of technical assistance that would have been of real value. Now, in the tenth year of their administration, what has actually happened?

Baroness Scotland of Asthal: We have heat-seeking equipment, which I think has been available since early 2000, and sniffer dogs. I am happy to write to the noble and learned Lord. I did not expect that we would have a full debate on the details of trafficking, but I commend the noble Lord, Lord Dholakia, and his able assistant the noble Baroness, Lady Anelay, for enabling us to do so. I have to say that I am complicit, too, because I could have simply not replied.
	The importance of this work is clear. I remind the Committee that we have put in place the procedure of obliging authorities to go to the High Court to obtain such an order to take into account the fact that the orders have to be proportionate and reasonable and to avoid the difficulty that arose on the previous occasion. We think that this is a good way of delivering on that. I am happy to write further on this to the noble and learned Lord, Lord Lyell.
	Perhaps we can now move on to the next amendment. We have had a debate that has lasted one hour and 24 minutes.

Lord Goodhart: Although my name is not down to the proposal that Clause 1 should not stand part of the Bill, my noble friend Lord Dholakia has suggested that I might be the person to speak to it. Before I begin, I should do two things. First, I declare an interest: I am the chair of the council of Justice, an organisation which submitted a briefing on the Second Reading of the Bill, although it has not as yet submitted a further brief on the Committee stage. Secondly, I speak on this occasion for myself and not on behalf of my party. It is an important distinction to make on this occasion because I shall be making certain suggestions which have arisen in my mind as a result of the meeting that the Minister arranged last night. I have therefore not had a chance to clear them properly with my noble friend.
	I spoke on this part of the Bill on Second Reading. As I said then, and say again today, it is no answer to the problem that serious crime prevention orders will be made by judges who will act reasonably. We should not create laws that create scope for injustice and rely on the judiciary to apply those laws with moderation. I believe that Part 1 as it stands is incompatible with the rule of law and with the basic principles of our criminal justice system. However, I want to be constructive. I understand the objectives at which the Government are aiming and I want to see whether it is possible to suggest acceptable ways in which those objectives could be achieved.
	I have no great problem in principle with imposing SCPOs on conviction for serious offences, provided that the SCPO is limited—I would want it to be limited in the Bill—to orders that are necessary and proportionate. An SCPO in those circumstances could be regarded as part of the sentence. It is the same principle as imposing a driving ban on a defendant charged with dangerous driving, in addition to a fine or prison sentence, and perhaps more directly similar to placing someone on a sex offenders register, with the effect that that has on the chance to obtain certain kinds of employment. I have more problems with imposing SCPOs after a conviction by a foreign court, but those problems could be overcome, and I do not think this is the time or place for considering how that might be done.
	The real problem arises where there has been no conviction because imposing significant restrictions on the liberty of people who have not been convicted of any crime is not acceptable. This potentially goes far beyond the extent of the football ban. The only comparable circumstance is that of control orders under the terrorism legislation, for which there is a much stronger case because it is the aim of some terrorists to commit mass murder. This provision contravenes the basic principles of our legal system. We are facing a real and increasing danger of ASBO-creep; that is, the use of civil orders to evade jury trial and the need for proof beyond reasonable doubt.
	Is there any alternative? There may be. The briefing the Minister arranged yesterday was very interesting. I think she has the Chatham House rule the wrong way round because it says that you can tell the world what was said at the meeting but not who said it. She has applied it the other way round. We know, therefore, that the director of SOCA was there, accompanied by one of his very senior colleagues. It became apparent that they were concerned in particular with the activities of people who assist organised crime without necessarily being parties to that crime. We have been given some examples of the way in which that might happen. The noble Lord, Lord Lucas, gave an example in relation to drug dealing. Another similar example, which I feel happy to give, as it was used as an example yesterday, is that the legislation would include, for instance, an owner who lets a property that a tenant uses as a greenhouse for growing cannabis, where the owner chooses not to go round to see what is happening there. These are all cases in which, under the existing law, there could be no prosecution because the individual was merely providing facilities, was not part of any actual criminal act and was not part of the conspiracy—no doubt having taken great care not to be so.
	Facilitating criminal activity by providing goods or services or the use of property should itself be capable of becoming a criminal offence. There is a clear precedent for making such conduct an offence; that is, in connection with the law relating to money laundering. One has only to look at Part 7 of the Proceeds of Crime Act 2002, one of the most powerful weapons against organised crime. It provides that if a defendant knows or suspects, or has grounds for knowing or suspecting, that money which he is handling is the proceeds of crime, he commits a criminal offence if he does not report it. That would need some modification but I do not think that would be very difficult. If the defendant provides goods, services or property to be used for the facilitation of a serious criminal offence, and if the defendant knows, suspects or has reasonable grounds for knowing or suspecting that the goods, services or property are to be used for that purpose, then that should be a crime—either if it is known when the person enters into the transaction or if he becomes aware of it at a later date and fails to notify the police.
	That provision would be a great improvement on the present proposals because the creation of such an offence means that it would be criminal procedure which had to be used in order to obtain a conviction. It would mean imposing criminal penalties on a conviction which could include a serious crime prevention order. I believe it will have every bit as strong a deterrent effect on the facilitation of crime as the Bill now does, and it avoids the creeping threat to the rule of law from the use of civil procedure to impose criminal penalties.
	I invite the Government to consider this alternative way of dealing with the issue. I recognise that it is impossible to rewrite Part 1 between now and Report, but it could be removed from the Bill and the Government could then either enact the rest of the Bill or, if they are able to move quickly enough, introduce a new Part 1 when the Bill gets to the House of Commons. Part 1, in its present form certainly, should not be allowed to remain in the Bill and should be dealt with appropriately on Report.

Baroness Anelay of St Johns: My noble friend Lord Lucas rightly referred to the fact that in Clause 4 there is a defence of reasonableness from the point of view of the innocent trader. My concern always is when an innocent person has to avail himself of a reversed burden of proof. We have already had a debate on that in another context.
	The Minister has assisted me by further clarifying intent. She said in particular that the majority of applications are likely to be under Clause 2(1)(a) and (b), but maintains that there could be occasions when paragraph (c) would be appropriate. I will certainly read very carefully what she has said with regard to that. She went on to say that she anticipated that cogent evidence would be required that a business was being used for criminal purposes. We have talked too much about adapted lorries today, but I recall that not so long ago the police successfully brought such a prosecution. That makes me think again that there might still be arguments against the need for crime prevention orders on those specific occasions.
	The Minister might have unintentionally assisted the noble Lord, Lord Dholakia, who is on my right, at least on this occasion, in his quest to abandon Part 1. He does not have me on his bandwagon at the moment regarding that, but we will see what happens in the future. The noble Baroness has done the Committee a service by clarifying those issues, particularly regarding timing as I can indicate that as a result of her explanation I will not move my amendment on recklessness after what I anticipate will be the diner break. On this occasion, I beg leave to withdraw the amendment.

Lord Truscott: My Lords, your Lordships will be aware that the Companies Act 2006 had a long history, both in its policy development and its passage through this House. The Act is a large one and its implications are far-reaching, and it is important that we ensure its provisions are brought into force in an orderly fashion if we are to maximise the benefits to businesses.
	In the context of the present debate, it might be useful to say something about our overall approach to the commencement of the Act. The Minister for Industry and the Regions, my right honourable friend Margaret Hodge, made a Written Statement in the other place on 28 February setting out, in comprehensive terms, the commencement timetable.
	On the same day, the Department of Trade and Industry published a consultation document providing further information concerning implementation, the issues involved and the proposed way forward. We hope that all stakeholders will wish to engage with us to help us make the implementation package as good as possible.
	A first commencement order was made in December 2006, commencing important provisions, facilitating electronic communications by companies and implementing EU obligations.
	The present instrument, the second commencement order, would come into force from 6 April this year, the common commencement date. It would commence further provisions that we felt it right to implement ahead of the main body of the Act.
	The draft order would bring into force Part 28 of the Act concerning takeovers. Throughout the passage of the Companies Bill, the Government made clear their intention to bring the provisions of Part 28 on takeovers into force at an early stage following Royal Assent. These provisions place the regulatory activities of the Takeover Panel within a wholly statutory framework. They will replace regulations which took effect in May last year and implemented the European takeovers directive on an interim basis while the Bill completed its parliamentary passage.
	Section 943 of the Act confers a rule-making power on the Takeover Panel. The rules on takeovers have long been laid down in the takeover code, which historically had no statutory basis. Yesterday, the Code Committee of the Takeover Panel adopted the necessary changes to the takeover code to reflect commencement of Part 28 of the Act. These will come into force on 6 April.
	The Takeover Panel has made a significant contribution to the competitiveness of UK financial markets over the past four decades. We are convinced that it will continue to do so within the new legal regime that underpins its activities.
	The draft order would also extend to Northern Ireland the availability of community interest companies—CICs. These are limited companies, with special additional features, created for the use of people who want to conduct a business or other activity for community benefit, and not purely for private advantage. CICs were introduced in Great Britain by the Companies (Audit, Investigations and Community Enterprise) Act 2004—the CAICE Act. There are now more than 700 incorporated CICs. It was always intended that CICs would be extended to Northern Ireland. The necessary secondary legislation was, however, never finalised. The Companies Act 2006 will introduce a single legislative regime for companies applying throughout the United Kingdom. The order seeks to apply to Northern Ireland both the relevant provisions of the CAICE Act relating to CICs and the supporting secondary legislation.
	In making this instrument, we rely on powers in the Companies Act to make consequential amendments, transitional provisions and savings and to commence the provisions of the Act. The consequential amendments provision—Section 1294—is subject to affirmative procedure. We believe that we are making common-sense use of this power. The draft order repeals or revokes redundant legislation, such as the interim regulations giving effect to implementation of the takeovers directive. It also updates references in other legislation to provisions replaced by the Companies Act 2006.
	The provisions of the Companies Act 2006 that this order would bring into force have been extensively debated during the passage of that Act. These provisions are self-contained and offer immediate benefits in terms of securing regulatory independence for the Takeover Panel and extending choice of corporate vehicles. We think that there is a good case to give early practical effect to the takeovers and Northern Ireland CICs' provisions which the draft order is designed to do. I beg to move.

Lord Hodgson of Astley Abbotts: My Lords, I know that the whole House will be grateful to the Minister for his careful explanation of this technical but, nevertheless, important set of regulations. For those of us, including the noble Lord, Lord Razzall, and I, who slogged our way through 1,920 amendments on the Bill's initial passage before later considering 1,020 Commons amendments, the mere mention of the Companies Act 2006 brings a certain tension to the atmosphere. To paraphrase Shakespeare, we shall certainly stand on tiptoe when this Bill is named.
	I welcome the noble Lord, Lord Truscott, to his first outing on this subject. He will be aware that the Bill did for his predecessor, the noble Lord, Lord Sainsbury, but I trust that a similar fate does not await him.
	As I said, this is a technical set of regulations, but there are underlying issues on which I believe the House would welcome clarification. First, there are some practical issues relating to the 2004 Companies Act and the application of the CIC regime to Northern Ireland. Secondly, there is some unfinished business from the 2006 Act relating to the implementation of the takeover directive. Thirdly, there is the future implementation of the 2006 Act.
	As I was preparing for this debate, I was hoping to persuade the Minister to lift the curtain a fraction on the Government's overall plans for implementation, because there have been a number of different smoke signals. At that very moment, through my letterbox came the Written Statement by Margaret Hodge in another place and the associated consultation document. That did not so much lift the curtain as tear it down. We are grateful to the Government for that—as, I know, are a whole range of practitioners. The 2006 Act is complex stuff with far-reaching consequences, so it is important for those affected to have the maximum time to absorb its implications.
	I hope that I will not be seen to be ungrateful if I raise a mini-whinge about the Statement. It consists of a helpful list of the dates on which the various parts of the Bill come into effect. Two parts appear to be missing from the list: Part 39—"Companies: minor amendments"—by the way, I am not sure that minor amendments is quite the right title because quite substantial powers are taken and given up by the Minister in that regard; and Part 40—"Company directors: foreign disqualification". It is only when one goes to the consultation document and the table of commencement date that one can discover that Part 39 is due to come into effect in April 2007 and Part 40 in October 2008. So my minor whinge—and it is a mini-whinge—is that it would have been preferable if the Written Statement had in and of itself contained a comprehensive list of all parts of the Bill.
	I now turn to Northern Ireland and the CIC regime. We are sympathetic to the attempts to encourage voluntary in charitable work. We accept that a conventional company structure does not always fit requirements. It was in that spirit that we welcomed in principle the new CIC regime when they debated the 2004 Bill, as it then was, but they raised concerns in Committee. Chief among those was the fact that yet another regulatory framework was to be created, with all its associated costs and expenses, for which there might be little demand. The CIC regime is not quite as simple as it might at first seem. If one turns to Part 2 of the rather clumsily titled, Companies (Audit, Investigations and Community Enterprise) Act, one does not just set up a CIC. There is to be a regulator under Clause 27 with a whole schedule, Schedule 3, with his duties. There is a CIC appeal officer in Clause 28 and he, too, has a schedule of duties associated with him. Finally, there is to be a CIC official property holder in Clause 29, also with a schedule of duties.
	So we are giving this expensive party. How many people want to attend it? The Minister has just given us an up-to-date figure of about 700. In terms of the per capita or per company cost, that must be an extraordinarily expensive exercise. Do we really have to extend all that structure to Northern Ireland now? Would it not be better to wait to see what is the level of demand in England and Wales before going ahead? If we are to go ahead, will the Minister confirm that Northern Ireland will not have to have its own regulator, its own appeal officer and its own official property holder? If not, and Northern Ireland must have its own officials, surely it would be even more unwise to proceed now, because on a pro rata basis, given what has happened in England and Wales, it would seem unlikely that Northern Ireland will have more than about 20 CICs.
	I fear that the Minister will not be moved by those arguments. I suspect that if I were to be able to sit on the Bench behind him and glance over his shoulder at the speaking notes prepared by his officials, they would say words that the effect of, "It is very important to do this now. Northern Ireland is part of the United Kingdom. The encouragement of voluntary effort in the Province is particularly important", and so on. If that is the argument that he will be deploying to the House, I draw his attention to the Charities Acts 2006, in which Clause 34 and its associated Schedule 7 establishing a regime for charitable incorporated organisations—CIOs. The truth is that CIOs are CICs by another name. The only significant difference is that one comes under the DTI—CICs—and the other under the Cabinet Office—CIOs.
	I yield to no one in my desire to encourage and increase charitable and voluntary work, but we need at all times to have regard to the regulatory cost and burden that we are creating and whether they are proportionate to any return to be achieved. If the Minister is determined to press on with this part of the regulations, he owes the House an explanation of why we need these two parallel, overlapping structures; what he thinks the difference is between CICs and CIOs; and for which separate problems they provide a remedy.
	I now turn to the implementation of the takeover directive and Part 28 of the Act. We had lengthy debates in Committee in March last year on the loss of self-regulatory flexibility hitherto enjoyed by the Takeover Panel which, as the Minister said in his opening remarks, has been such an important part of the success of the City of London. We accepted that if we were to create a level pan-European playing field in financial services, which would be much to the City's advantage, that was a price that we were going to have to pay. Where we were unpersuaded was that once again, there was evidence of goldplating—the UK doing more than was required by the directive. Specifically, what has become Clause 9(5)(3) makes failure to comply with rules about the takeover code and bid documentation a criminal offence. We were very concerned about what that might do for the City's competitive position.
	At that time, last March, we could find no other European country that had felt it necessary to criminalise such behaviour to comply with the directive. The noble and learned Lord the Attorney-General argued lengthily and fluently—but not, in my case, persuasively—that we had to have that sanction to comply with the directive. However, he could not name any other country in the EU that thought as he did. When pressed, his only argument was that it was early days to see how different countries interpreted the provisions.
	It is no longer early days. The directive has now been in force for eight months. It would be interesting if the Minister could tell us how many other countries have felt it necessary to introduce a criminal sanction. Were we right or was his colleague the Attorney-General right?
	Finally, I have a point concerning the drafting. Schedule 1 has three paragraphs concerned with takeovers—2, 3 and 4. Subparagraph 4.2 concerns written resolutions defined in terms of Section 381 of the Companies Act 1985. According to the Hodge Statement, in October this year, Part 13 of the 2006 Act—"Resolutions and meetings" will come into force. Clause 288 in this part deals with written resolutions. It will be helpful if the Minister could confirm that that will require another set of regulations to amend the subparagraph 4.2 to update their definition.
	I conclude by saying that we are pleased to see the Government proceeding with the implementation of the Companies Act 2006—a vital updating of our corporate law. We are especially pleased in the light of the Hodge Statement on which the Government are to be congratulated. Notwithstanding that, given that general welcome, I will be grateful for some further detail on the points that I have raised.

Lord Razzall: My Lords, like the noble Lord, Lord Hodgson, but unlike the Minister, who took office afterwards, I have Company Law Bill 2006 on my heart, rather like Mary did with Calais, but the Minister was either fortunate or unfortunate—he would say unfortunate—not to have the opportunity. Nevertheless, in the view of the noble Lord, Lord Hodgson, and myself, we ended up with a very good Bill as a result of the conduct of proceedings in both this House and the amendments that the Government took on board to what was, I think, the largest Bill ever presented to either House of Parliament.
	As the noble Lord, Lord Hodgson, indicated, the Statement from Margaret Hodge, the relevant Minister in another place, indicated when the various pieces of legislation come into effect. My instinctive reaction has been to ask why some of them need to take so long. Industry and the professions have taken on board the Bill's implications, but I am not entirely sure why it needs to take until 1 October 2008 to bring into effect many of the provisions. However, that is obviously what the Government have decided and that is what will happen.
	I want to draw attention to a point about the regulations. I am more worried that the Minister in another place has indicated in her Statement that there will be a consultative document on the policy issues related to the secondary legislation that will need to be made under the Act and on transitional and savings provisions. I am concerned that we should not become bogged down in the detail; in particular, the corporate law files that seem to have applied particularly to Article 11(2) of the order. If that is the extent to which practitioners are expected to understand what the Government are saying, I draw attention to the Explanatory Memorandum on Article 11(2). The Minister is probably too young to remember the Hoffnung story about the bricks and the rope but the noble Lord, Lord Davies, sitting next to him, will remember it because he is older than I am. The Explanatory Memorandum states that:
	"Article 11(2) relies on Section 1296(1) of the Companies Act 2006 to save the application to limited liability partnerships ("LLPs") of a provision of the Companies Act 1985 which it had been intended should continue to apply to LLPs despite the repeal of that provision in its application to companies. Because of an error in the Companies ... Order, this was not achieved. The Department considers that this saving is effective notwithstanding that the repeal has already come into force, because its effect is not to reverse the repeal but to save the application of the repealed provision to LLPs and thus to cause it to apply again from the coming into force of the Companies Act 2006 ... Order 2007. The Department does not consider that savings under section 1296(1) have to be made at the same time as the commencement to which they relate.
	"It has been suggested that the vires ought to be found within sections 15 to 17 of the Limited Partnerships Act 2000. They could not, however, have been relied upon in this commencement order, because the power there is to make regulations. There seems to be, in any event, no difference between what could have been achieved had separate regulations been made under section 15(b) of that Act and what has been provided in the Order under section 1296(1) of the Companies Act 2006".
	I know that the noble Lord, Lord Davies, is a man of distinguished ability, perspicacity and brilliance. If even he is prepared to stand up and explain what that gobbledegook means, I bow to him with the estimation that I always show him, but if this is the quality of consultation that will apply to future orders, I worry for the future of consultation.

Lord Truscott: My Lords, I am grateful to noble Lords for taking part in this debate. I would like to recall to your Lordships' House the words of my noble friend Lord Sainsbury on 23 May last year in concluding the Third Reading debate on the Bill, which became in this House the Companies Act 2006:
	"I believe the constructive spirit in which we have engaged in what have sometimes been controversial and often extremely technical issues has contributed greatly to the quality of debate. That is one key reason why the Bill leaves this House in such good shape. Ultimately, it is a Bill that will greatly help the success of British industry. However, all good things must come to an end".—[Official Report, 23/5/06; col. 796.]
	It was no doubt with relief that your Lordships completed the work on that Bill; they have all my sympathy. Great work was carried out in this House on that Bill. The present draft instrument, the second commencement order, is a further step towards that end.
	Before responding to the points that noble Lords have made, I would like to pick up on a few of the themes from my noble friend Lord Sainsbury's remarks that remain pertinent this evening. The first is the constructive spirit of the debate. I am grateful to noble Lords this evening for their contribution to the provisions now contained in the Act which the second commencement order would bring into force. I am convinced that the provisions are all the more robust for the detailed scrutiny that they received in this House.
	Secondly, I turn to the technical nature of the provisions. I fear, alas, that companies legislation will always be beset by more than its fair share of complexity, as we heard again from the noble Lord, Lord Razzall. We are taking steps to make the legislation as accessible as possible. There are, for instance, briefing notes and explanatory guidance on the DTI website concerning the commencement orders laid to date and the takeover provisions introduced by the current order. Information about CICs is available on the website of the CICs regulator. I am sure that that will make the clause to which the noble Lord, Lord Razzall, referred, as clear as day.
	Finally, I shall deal with the benefits to business. I shall not try to pretend that the content of this draft order is exciting in itself. It is a technical and complex instrument, but it brings into force important key provisions of the Companies Act 2006.
	I shall deal with the points raised by noble Lords in the debate. The noble Lord, Lord Hodgson of Astley Abbotts, pointed out two minor blemishes in the Written Statement on the commencement timetable. I agree that it is important that business can plan properly for implementation of the Act. The Written Statement will greatly facilitate that. I can confirm that the extension of the CIC provisions of the CAICE Act will not lead to a parallel regulatory regime in Northern Ireland. Northern Irish CICs will use the same system as that in Great Britain. We expect roughly the same level of take-up as for Scotland and Wales, and the CIC regulator is absorbing the extra costs therefore the regulatory costs should not be excessive.
	On paragraph 4(2) of Schedule 1, there will be at least one more commencement order after this, and it will ensure that any transitional adaptations included in the draft order now before the House will cease to have effect at the appropriate time. The noble Lord, Lord Hodgson, also mentioned the takeover bid documentation offence. During the passage of the Bill we listened carefully to the arguments on new takeover bid documentation offence. I wish to reassure the noble Lord about the impact of the new offence provision. Liability under the offence is incurred only where a person actively knew that the bid documentation did not meet the required standards or was reckless as to whether it did so and failed to take all reasonable steps to rectify the shortcoming. That seems to us a reasonable and proportionate test. We also introduced amendments designed to narrow and clarify the scope of the offence, but nevertheless continue to view the offence as an important part of our package to implement the EU takeovers directive. We are not aware of a comparable situation in other EU member states, but I will look into it further. If it is of interest to the noble Lord, I shall write to him on the matter.
	The noble Lord, Lord Razzall, mentioned the implementation timetable. All of the Act will be in place by October 2008, with many elements implemented earlier. Major parts of the Act will be commenced in October 2007 and April 2008. The Government have been guided by a desire to see the benefits for business introduced as quickly as possible and to observe common commencement dates. We are aware, however, that business needs time to prepare properly for the implementation of such a large and important Act, as I said earlier when referring to the point raised by the noble Lord, Lord Hodgson. We have had extensive discussions with a wide range of interested parties to make sure that we have a timetable that gives business certainty, time to prepare and, wherever possible, early savings and administrative benefits.
	The Government's consultative document was published on 28 February. It sets out our proposed approach in areas where secondary legislation is necessary to implement the Companies Act 2006. It also considers the extent to which transitional provisions are needed to ensure that the Act operates in a reasonable way for existing companies. It deliberately seeks to focus the attention of consultees on areas where we are considering substantive change.
	The noble Lord, Lord Razzall, expressed his views on the clarity of Article 11, on limited-liability partnerships.

Baroness Anelay of St Johns: In speaking to this amendment, I shall also speak to Amendments Nos. 25, 30 and 39, which are grouped with it.
	The Government's rhetoric surrounding the Bill has spoken of the new tough measures regarding people involved in serious crime, so it is important to examine whether these measures will indeed target what would be commonly thought of as serious crime, or whether it misses that target and adopts a scattergun approach across a wide range of offences that would not normally be considered serious. We have tabled a series of amendments to examine different aspects of that question. They fall into different groups, some of which I anticipate will be debated upon another occasion but not tonight.
	The first group challenges the Government's proposition that the definition of serious crime can be changed on a day-to-day, case-by-case basis by the courts. That seems extraordinary. There was some small reference to this earlier today, but these amendments address the detail of the matter.
	Schedule 1 lists a range of criminal offences that are to be treated as serious crime. In a later group we shall examine whether that list is in itself appropriate, when we reach Amendment No. 49. What concerns us in this group of amendments is the fact that the Bill provides that a serious offence includes any that, in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified. So even if an offence is not listed in Schedule 1, a judge can treat it as if it were.
	I join with the Minister in her remarks earlier today; I am on record too as having great faith in our judiciary. Of course I do. I have previously declared my interest, that I am married to a barrister who sits as a part-time recorder in the Crown Court. The Minister's effusive remarks were on the calibre of the High Court judges and the way they were going to make these decisions, and I also, of course, admire those in the Crown Court.
	Despite all that, however, I can set that partiality aside; it does not mean I am content with the proposition that there should be so little clarity and certainty in the law before us that we should leave it to the judge to determine case by case, on the matter of the moment, what should be construed as serious crime within the context of the applications for a serious crime prevention order. In theory, that means any offence could be construed as serious, such as graffiti, or minor criminal damage to a neighbour's fence. Despite what the Minister said when she responded to Amendment No. 2 earlier today about the ability of High Court judges to construe what is serious crime, the problem is that, however able they are, by giving them that power in the context of these orders, we simply lose clarity and certainty in the law. The Explanatory Notes are silent on the Government's justification for such a wide-ranging discretion in the hands of the court.
	The Government's proposals do damage to the principle of legal certainty. We seek to remove that uncertainty. Our amendment would ensure that an offence was only a serious offence if it was actually listed in Schedule 1. I beg to move.

Baroness Scotland of Asthal: As I have said on a couple of occasions, I understand the noble Lord's anxiety. I should declare an interest, as one of Her Majesty's deputy High Court judges. I exclude myself from any of the comments I make in relation to those judges who have the privilege of sitting. I am grateful to the noble Baroness for reminding me of the declaration, by virtue of her example.
	It is important to remember the context when looking at the amendments. Those who commit serious crime are innovative and enormous adaptable. They do not commit crime for crime's sake; they do so to fund luxurious lifestyles, taking advantage of those more vulnerable than themselves wherever they find them. They are extraordinarily innovative. From his wealth of experience, the noble Lord, Lord Dear, explained this to us very eloquently during our Second Reading debate.
	It is therefore incredibly difficult to provide an exhaustive list of the types of criminal activity in which such people will engage, both now and in the future. If one looks at the way in which criminal activity has developed over the past few years because of the opportunities that technology has provided, it becomes clear why that is so. This type of criminal continually seeks to find new opportunities to exploit the way in which law-abiding people live their lives together. Our society never stands still; it is always evolving and changing, so the protection which exists at present has its weak points, which are usually preyed upon. The development of internet fraud and of pornographic and paedophiliac activity on the internet was unknown a few years ago, yet it has been developed with great facility by those who want to promulgate these pernicious activities.
	It is important that we do not fetter the discretion of the courts and their ability to adapt to the constant changes around us by looking too narrowly at these issues. We have to put them in the context of the position in which we find ourselves. The court will be able to make a fully informed and reasoned decision as to whether it will be appropriate for an offence to attract an order.
	"Seriousness" is not a new concept, as I indicated at the start of our first debate. The term is well understood and there is a great deal of jurisprudence in relation to it. Further, an offence will not always be appropriate for attracting an order in all circumstances. Sometimes the context and nature of the activity and the way it will be used will make it particularly serious, and the court will need to balance when that occurs. The orders should not be used against someone whose crime is to get involved in a fight in a pub, for instance. However, someone who has routinely used violence in the past to intimidate and maintain a reign of terror in an area might be an appropriate candidate for an order after serving his sentence if there is evidence that an order would prevent such crimes taking place again. There are many historical figures that one could cite; the Kray brothers, for example, used violence and intimidation as an integral part of their criminal activities.
	Finally, I hear what the noble Baroness, Lady Anelay, says about the need for certainty. I believe that the position provides just that while maintaining the flexibility which, as I have explained, we believe to be essential. The list in Schedule 1 to the Bill provides significant guidance for the courts about the types of offence that these orders are designed to be used against. I have every confidence that with this guidance the courts will be able to develop a consistent approach that strengthens the certainty of the Bill even further.
	Although I understand the noble Baroness's concern, we believe that the way in which the Bill is structured and the tests that have to be applied are sufficiently rigorous to make us confident that these provisions can be used with a degree of certainty in law that would make them fit to be used to address this most dreadful and pernicious form of criminal activity.

Baroness Anelay of St Johns: I am grateful to the noble Lord, Lord Dholakia, for his support. I agree with him that the difficulty is that it is impossible for people to ascertain in advance the likely legal consequences of their actions as a direct result of the way in which the Bill is drafted. I accept a lot of what the Minister said. I will have to read very carefully what she said and consider further.
	The Minister argues that the Bill provides the right balance between certainty and flexibility because Schedule 1 provides guidance about the type of offence. We will deal with the detail of Schedule 1 later on, but she says in support of her argument that there are three separate reasons why it is appropriate that there should not be an exhaustive list. She talks about the fact that criminals, particularly the ones whom we are trying to get at here, are highly innovative and devious, and will adapt their methods in order to find the easiest way to make the most amount of money. I appreciate that it is difficult to provide an exhaustive list. The implication of the Minister's argument is that if one has an exhaustive list, the serious criminal will simply say, "Right, well that avenue is closed off so I will find something else". I understand that argument.
	However, the Minister goes on to put three different scenarios in support of her argument. I will take them in reverse order, like a beauty contest. She said that the way in which one commits an offence can make it serious. It might be a multiple offence, or it might be the way in which one adapts a particular offence that makes it serious. I understand that the court might indeed be able to interpret seriousness in that way, because she also said that seriousness is well understood and there is jurisprudence on the matter. Those two matters go closely together and I can see her argument developing there. But she started with an argument that there is still some difficulty around.
	The Minister pointed out, quite rightly, that society is always evolving by its very nature. In support of her arguments, she said that new crimes pop up. We have seen the development of internet fraud and its use for paedophile activity. Society is rightly concerned about both. But the difficulty seems to be, "We must be able to respond to new developments and new crimes", but if an order is to be imposed, the court has to say that an activity is a crime anyway. In order to get to that stage Parliament would have to have been invited by the Government to have created an offence, the facilitation of which the court can then decide should be taken as being a serious offence. You cannot have a situation where some new innovative activity can bring a person into the order-making process. There has to be a crime first.
	I can see that the second and third arguments have to be taken very seriously as undermining my proposition but the first one leaves me some cause of concern. I may be able to resolve it at a later stage. At this stage, I beg leave to withdraw the amendment.

Lord Henley: It has been some 10 years since we were in government. We are always entitled to change our minds. I am grateful to the noble Lord for correcting me, but this is now our policy. I can think of a number of matters on which we have changed our policy and, dare I say, I can think of a number of matters on which the party opposite, now in government, would not have recommended when it was in opposition—I have seen Home Office Ministers blush over a number of years. The noble Baroness will, no doubt, agree with me on that.
	Perhaps I may return to what Eric Metcalfe said in his report. Although he accepted that it was not a silver bullet, he said,
	"it is a bullet nonetheless".
	As the noble and learned Lord underlined, outside the United Kingdom, intercept evidence has been used in a large number of countries, including in the US to convict various al-Qaeda cells following 9/11 and the five godfathers of New York crime, as well as war criminals before the International Criminal Tribunal for the former Yugoslavia.
	The Justice report, published last year, highlights the fact, to which the noble and learned Lord also referred, that we are the only common-law country that prohibits completely the use of intercept evidence. The report details how prosecutors in Australia, Canada, New Zealand, South Africa and the US regularly use intercept evidence in prosecuting serious organised crime and terrorist offences. The report shows also how principles of public interest immunity are used in those countries to protect sensitive intelligence material from being disclosed in criminal proceedings. It concludes that the ban on such evidence in this country is, as the noble and learned Lord said, archaic, unnecessary and counterproductive. That view was supported by Liberty.
	The noble and learned Lord underlined just how many other people supported this change. He mentioned the Commissioner of the Metropolitan Police and Dame Stella Rimington, the former director of MI5, who has called the ban ridiculous. He referred to the remarks of our own Attorney-General, the noble and learned Lord, Lord Goldsmith. I have his remarks as reported in the Guardian in September of last year, but I have not been able to dig them out for this occasion. He is yet another person who has supported this move, along with the Director of Public Prosecutions.
	The Minister has argued that one reason why it may not be possible to prosecute those suspected of involvement in serious crime or terrorism is that the evidence on which suspicion is based would be inadmissible in court. I ask her what assessment the Government have made of the number of criminals who avoid conviction because of the restrictions on the use of this evidence. Would the disclosure of such methods that would result from the use of that evidence damage the ability of those who protect us to go on doing so as effectively as they do?
	It is now time for the noble Baroness to justify why the Government, in bringing forward a Bill of this nature, will not give the prosecutors the ammunition that they need, whether it is a silver bullet or an ordinary bullet, to prosecute serious criminals and terrorists in the criminal courts. She says that she would like to see further prosecutions. Rather than supporting what the Bill seems to be doing—relying on control orders and super-ASBOs—she might take this opportunity of supporting the noble and learned Lord's amendment and allowing a more effective method of achieving prosecutions.

Baroness Scotland of Asthal: In that case I would have to not answer each and every question I have been asked and answer globally. The noble Lords, Lord Henley, Lord Dear, and Lord Thomas, have asked me repeatedly what the Government's justification for its position is and I fear I should answer that.

Baroness Scotland of Asthal: I certainly do and I pay tribute to that persistence. I also admire the erudition of the noble Lord, Lord Henley. By his example he has reminded me why it is so important to resist the temptation simply to concede when one ought not to do so.
	Our position remains what it has always been. We see that this would be an advantage if it could be safely deployed. The noble and learned Lord the Attorney-General is a fine member of our Government—this is a Government view. The emphasis has always been on whether it is possible for it to be safely deployed. When this matter was discussed in Committee, as the noble and learned Lord, Lord Lloyd, made plain in late 2005, several Members of your Lordships' House explained that the successor to the noble and learned Lord, Lord Lloyd, as Interception of Communications Commissioner, the right honourable Sir Swinton Thomas, had profound concerns that these amendments would cause grave damage to our capability.
	In addition to his extensive legal experience which has been appropriately lauded in this House, Sir Swinton has the widest independence and up-to-date experience in all aspects of interception, including his scrutiny of the use and effectiveness of interception by all interception agencies and the co-operation of the service providers. The House will have seen Sir Swinton Thomas' latest annual report, quoted so correctly by the noble and learned Lord, Lord Lloyd, tonight. In view of his authority, his views should be taken very seriously indeed. I hear what he says about being "misguided" and "ill-informed" but I am sure he could not have thought that the noble Lord was "ill-informed", although I make no mention of whether it is possible to change things in view of current circumstances. He makes it clear in his report, as the noble Lord indicated, that protection is vital if we are to ensure that the most effective protection from terrorism and serious crime is provided and if we want to continue to benefit from the crucial co-operation of the communications industry on which we rely. We cannot afford, or be seen, to play games here because there is simply too much at stake.
	Perhaps I may try to correct what appears to be a misapprehension in the amendment of the noble and learned Lord, Lord Lloyd, concerning the current inadmissibility of communications data, as defined by Section 21(4) of the Regulation of Investigatory Powers Act 2000.The noble and learned Lord will be interested to know that the current prohibition on communications data evidence extends only to data related to interception and not communications data within the meaning of Section 21(4), which is obtained separately under RIPA, Part I, Chapter II powers and widely used as evidence by a number of public bodies. I think that the comments of the noble Lord, Lord Thomas of Gresford, demonstrated the way in which those issues are dealt with.
	Perhaps I may again highlight the issues and expose the many misconceptions. It is frequently pointed out—the noble and learned Lord did so this evening—that there is little or almost no knowledge of the interception regimes in either the UK or overseas and that the United Kingdom is one of the few countries which do not use interception evidentially. The intimation is that a vital tool is missing from our criminal justice toolkit. However, that takes no heed of the fact that our results—what we achieve with our intelligence-only regime—are already impressive. For example, in 2003, interception led to the seizure of 26 tonnes of illicit drugs and 10 tonnes of tobacco, and the detection of £390 million worth of financial crime and 1,680 arrests. A sampling exercise carried out in the latest review showed that the resulting proportion of convictions exceeded 80 per cent of those arrested as a result of the use of interception for intelligence purposes only.
	Those statistics are very significant because no evidence has been produced or found to show that other countries are more effective in countering terrorism and organised crime. It has been implied by a number of noble Lords tonight that we could do significantly better if we exchanged our system for the Australian or US systems, yet I have to tell your Lordships that that is simply not true. For example, the media have reported on the unsuccessful use of intercept product in terrorist trials in Spain and Italy. Australia's latest published figures on interception, from the Telecommunications (Interception) Act 1979 Report for the year ending 2004, show that in 2003-04 there were no convictions in the five terrorism trials which used intercept evidence. The Canadian 2004 Annual Report on the Use of Electronic Surveillance shows that there were 84 interception authorisations in that year but that none ended with a conviction. In the United States, in 2004 there were 1,710 law enforcement interceptions—much the same figure as in the United Kingdom—but those resulted in 634 convictions, which is a success rate well below that estimated, albeit based on a small sample, for the UK.
	These statistics are very powerful. They do not support the contention that the evidential use of intercept will produce more convictions than using intercept for intelligence purposes only but, rather, that there is every reason to suppose that it would not.
	It cannot be disputed that no other country in the world—none—enjoys the huge benefits which the United Kingdom derives from the close relationship, including in terms of interception, between law enforcement and the intelligence agencies and with the communications service providers. Yet there are those who still propose that we adopt the interception regimes used in other countries—consequently undermining or severing those relationships. However, they fail to point out that in doing so we have little, if anything, to gain but potentially much to lose. Indeed, even if it were possible to preserve the effectiveness of intercept as intelligence entirely, while also using it evidentially—and no one has yet found a way of making that possible; that is what we are trying to do and if we could, obviously, it would be capable of being used—the evidential use of intercept would not even add significantly to the number of convictions that can be secured.
	The most extensive and comprehensive review of a series of reviews culminating in January 2005 found that—even if a way could be found to protect sensitive material—the evidential results of intercept products would be modest, confined to lower and medium-level criminals and could not be sustained past the change to new technology which is beginning. It expressly found that the modest and time-limited benefits that might arise from the evidential use of intercept would not apply to terrorists at all.
	The noble Lord, Lord Thomas of Gresford, asked: "Why can we have bugging and eavesdropping products used as evidence and not intercept material?" That overlooks fundamental differences between the two investigative techniques. In the case of planting microphones, a matter to which the noble Lord referred, it is the investigative agency which chooses the medium; with interception it is the criminal. The crucial distinction is that the criminal selects the way of communicating that he believes is safe and continues to provide intelligence on his intentions and preparations. That advantage would be lost to the investigation if disclosed to the criminal by evidential use.
	Furthermore, one interception technique may encompass many targets, some of enormous importance, while one bug, or position of surveillance, if exposed, is unlikely to compromise any other operations. So comparisons between these entirely different techniques are neither appropriate nor helpful.
	The noble Lord, Thomas of Gresford, said that if it is vital to protect sensitive capabilities and techniques from disclosure you should devise a way of separating the two out. I remind the Committee that, frankly, that is easier said than done. The Home Office has been leading work to assess the impact of new technology on communications and their interception. That work, which has had a substantial input from a cross-section of communications service providers, has highlighted that the United Kingdom, before anywhere else in the world, is to undergo the biggest change in communications technologies since the invention of the telephone. Within just a couple of years voice communications in the UK, like e-mails or video streams, will be computer data signals carried over the internet. The old-fashioned voice signals carried down lines and through telephone exchanges will go for ever. The priority must be to ensure that we maintain our interception capabilities in the face of this change. And we cannot look to see how others are doing it because we will be the first. We have already made it clear that the ongoing work is also looking at what evidential opportunities there might be with the new technologies. That is why I have continually said we keep on looking at it. It is not that we have closed our minds or that we do not want to do it. We are looking at it to see how and if it could be done, and done safely.
	Noble Lords said this evening that overseas jurisdictions do not seem to have any problem with using intercept evidentially. They also asked: "Why do we think we are different?" The answer is that our system is different. We have a rigorous disclosure regime within an adversarial justice system in which evidence is probed in court to an extent that does not occur in the inquisitorial or examining magistrates' systems. In addition, the co-operation between our intelligence and law enforcement agencies is unparalleled. We need to protect this partnership. Overseas jurisdictions do not. Because their intelligence and law enforcement agencies work separately they can have evidential intercept use for law enforcement and intelligence use for intelligence. We need to protect our co-operative and collaborative approach because we think that that model is more successful. It has delivered us outstanding results on terrorism and organised crime that we believe is second to none.
	I repeat that there is no evidence that other countries do better than we and it simply does not make sense to dismantle our system in favour of an alternative approach unless we are sure that the benefits of doing so will outweigh the risks.
	It has also been said that overseas jurisdictions do that and that we should also. It remains to be seen how those other countries that allow intercept will fare in the new world of computer technology. Will they be able to continue to intercept communications and will they be able to make what material they gather stick in a court of law? Our work suggests that they will not. I respectfully say to noble Lords that that is not a sound basis on which to go forward. The Home Office has set up a cross-department programme to co-ordinate our response to the technology changes and consider the resource implications. The business case phase of that programme will be ready fairly soon. That will be followed by an implementation phase.
	Let me turn last, I hope, to the legal model set out in the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. His amendment would give the prosecution alone the right to choose when to apply evidential intercept and when to withhold it. We have grave doubts that such a system would be consistent with Article 6 of the European Convention on Human Rights, which requires there to be equality of arms between the prosecution and the defence and which prohibits cherry-picking by the state. Even if the judicial discretion accorded by the scheme proposed by the noble Lord might theoretically go part of the way to meet those concerns, the Article 6 considerations are likely to render the scheme redundant in practice.
	Finding a way to limit the exposure of sensitive material imports is extremely difficult because our disclosure rules rightly—I emphasise "rightly"—seek to provide the defence with all the information necessary to ensure a fair trial. Therefore, we can justify withholding information only when it is strictly necessary and proportionate. Our previous efforts to devise a workable legal model have shown that the increased burdens on the intercepting agencies of devising systems to meet the Article 6 requirements would be crippling and undermine their capacity to undertake crucial interception.
	We must ensure that intercepting agencies, especially the Security Services, are able to combat terrorism and serious crime effectively and continue to have the flexibility to deploy resources to keep us safe. I know that all noble Lords agree with that. It has also been said that past prosecutions have been dropped—we could not proceed with them. We do not think that that is very helpful.
	There are specific issues about the Prevention of Terrorism Act. I could entertain your Lordships for some time about them. Suffice it to say that during debates on intercept being used evidentially to help to prosecute terrorists, including those on the Prevention of Terrorism Act, it was asserted that that would have rendered certain approaches to counter-terrorism, such as control orders, unnecessary. That was repeated again this evening.
	It was suggested that intercept could have enabled those previously detained under Part 4 of the Anti-terrorism Crime and Security Act 2001 to be prosecuted. I can confirm that that is simply not the case. A detailed analysis of all the material in those cases, including available intercept material showed that intercept would not—I emphasise, not—have enabled those individuals to be prosecuted, even if we had been able safely to adduce it. During the most extensive review of the possible impact of intercept as evidence, that conclusion was replicated with regard to terrorist cases generally. Clearly it is a priority of the Government to ensure the conviction of those who are guilty of crimes, but we would prefer those crimes, which might include terrorist atrocities, not to be committed in the first place. In that respect, our existing interception regime has served us well both with terror and with serious crime. The London attacks on 7 July 2005 and the attempted attacks two weeks later on 21 July were truly horrendous, but other attacks have been prevented and it is vital that we do not undermine our ability to prevent future attacks by exposing our most sensitive capabilities.
	The noble and learned Lord, Lord Lloyd of Berwick, in the Lords debates on the private Peer's Bill in November 2005 and on the preamble to the amendments proposed for the Terrorism Bill in December 2005, intimated that his proposals needed further work and consideration. I am sure that he would say the same for these. These are merely a stalking horse for us to come back to the issue. I honour him for coming back to the issue but I assure him that our refusal so far to accept his proposal is not intransigence, blindness or obdurate refusal to consider change. Each issue is being considered very carefully because it would be a consummation devoutly to be wished if it could safely be used. Neither we nor anyone else have found a way of enabling us to use the material safely. If we could, we would.
	I have tried to answer far more fully than I have previously, not to dissuade noble Lords from bringing back judicious interventions, but in the hope that the noble and learned Lord will be at least convinced that the provision has been rigorously examined. It will continue to be rigorously examined during the continuing review. I assure the noble and learned Lord that, if we can find a way to do as he proposes, he will be the first to hear. I hope that his passion for the subject may at least be sated for this evening and I invite him to withdraw his amendment.